Judgment:
ORDER
1. In this case the petitioner is questioning the validity of the Order No. LAW 49 LAC 96, dated 13/16-5-1996, communicated by the first respondent-Law Secretary (Annexure-J). This order has been passed by the Governor of Karnataka discharging the petitioner from service since he was found unsuitable to hold the post of Munsiff. It has been passed in exercise of the powers conferred under Rule 6(1) of Karnataka Civil Services (Probation) Rules, 1976.
2. Undisputed facts.--The petitioner was appointed as Munsiff on probation by Notification No. LAW 59 LAC 92, dated 7-7-1992 and was posted as Additional Munsiff and Judicial Magistrate First Class at Bellary, where he assumed the charge from 1-9-1992. The initial period of probation was of two yearsbut the same was extended by one more year with effect from 25-7-1994. During the said period the petitioner was transferred from Bellary District to Belgaum District.
3. The Administrative Committee No. III of High Court in its meeting held on 6-2-1996, considered the question of satisfactory completion of the period of probation of the Munsiffs appointed during the year 1992. On a review of the confidential records and the remarks based on assessment of their work as sent by the Principle District Judges, the Committee recorded its opinion. In respect of the petitioner it was found that his performance as a Judicial Officer was too poor to be considered as satisfactory for his confirmation to the post. Accordingly, the Committee recommended to the Full Court that the petitioner be discharged from service. This recommendation was considered by the Full Court in its meeting held on 26-3-1996 and it was resolved to accept the same. Pursuant thereto the Registrar General of the High Court (respondent 2) made a reference to the Law Secretary requesting him to initiate necessary action in the said regard. As a result thereof the impugned order of discharge came to be passed.
4. The petitioner has assailed the impugned order on the grounds that it has been passed on the ipse dixit opinion of the District Judge and further that the extension of the period of probation by the High Court should be taken as an evidence of satisfactory completion of his initial period of probation. It has further been submitted by the petitioner that the order of discharge on the ground of unsuitability should be taken as stigma against the petitioner and therefore such an order could not have been passed except by holding an enquiry and failure to do so has resulted in gross violation of the principles of natural justice. It has also been asserted that the impugned order suffers from the vice of non-application of mind and is thus liable to be quashed.
5. I have heard the petitioner, who has appeared in person, and Mr. N.K. Ramesh, learned High Court Government Pleader appearing for the respondents. I have also carefully gone through the averments made in the writ petition and the statement of objections. Learned High Court Government Pleader has also produced the original records for reference by the Court.
6. In the present case, the foundational facts are all admitted. The questions raised basically pertains to the competence of the Governor to discharge a probationer on the ground of unsuitability and the procedure to be followed in that regard. Detailed arguments have also been advanced regarding the extent of the permissibility of judicial interference in such cases. I will be delving on these legal issues hereinafter.
7. Rule 6 of the Karnataka Civil Services (Probation) Rules, 1976 (hereinafter in short 'the rules') under which the impugned order is passed is to the following effect.--
'Discharge of a probationer during the period of probation.--(1) Notwithstanding anything in Rule 5, the Appointing Authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government, shall not be given effect to, till it has been submitted to and confirmed by the next higher authority.
(2) An order discharging a probationer under this rule shall indicate the grounds for the discharge but no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, shall be necessary'.
8. The above rule clearly postulates that an appointee on probation can be discharged from service at any time during the period of probation on various grounds including his unsuitability for the service or post. This is one of the conditions subject to which a probationer enters into service. Further sub-rule (2) of the said rule specifically requires that the order of discharge passed under sub-rule (1) must contain the grounds for discharge. It also provides that for discharging a probationer on any of the grounds mentioned in sub-rule (1), no formal enquiry needs to be conducted.
9. In the present case, the impugned order of discharge has been admittedly made during the period of probation of the petitioner and as required under the above referred rule, since he was not found suitable for the post of Munsiff, so as requiredunder sub-rule (2), it has been so mentioned in the impugned order.
10. Therefore the impugned order, if adjudged in the context of the statutory empowerment and requirement, then it very much withstands its validity. The petitioner has not challenged the validity of Rule 6 of the Rules either on the ground of competence or reasonableness which possibly he could not have done keeping in view catena of clear judicial pronouncements on the subject.
11. The law relating to probationers in service jurisprudence is now by and large crystallized into well defined peripheries and does not require any meticulous judicial exercise to explore the same. There are decisions and decisions of the Apex Court apart from the High Courts in India, wherein it has been held that the period of probation is the period of trial during which the suitability of the Officer to the post to which he is recruited is to be tested. During the period of probation the official is required to prove his integrity and ability and capacity to discharge the duties of the post. Therefore, during the period of probation a person acquires no right to hold the post. He may be found suitable and a declaration may be given that he has completed the period of completion satisfactorily or he may be discharged if the Appointing Authority finds him unsuitable for the post.
12. Nonetheless, since several decisions have been referred to at the Bar, therefore, I find it advisable to refer from some of those which I find to be relevant to the issues involved.
13. The petitioner has relied on the decisions of Jagdish Mitter v Union of India; Anoop Jaiswal v Government of India and Another; H.B. Chattar v State of Gujarat; Dr. Mrs. Sumathi P. Shere v Union of India; U.P. Jal Nigam and Others v Prabhat Chandra Jain and Others; D.K, Yadav v M/s. J.M.A.Industries Limited; Sharanabasappa Channawar v D.I.G.; L. Kumara Chandra v State of Karnataka; Syndicate Bank,Manipal, Dakshina Kannada v B.A. Bhat; and Baidyanath Mahapatra v State of Orissa.
14. On the other hand, the learned High Court Government Pleader has sought the support from the judgments of Dr. T.C.M. Pillai v The Indian Institute of Technology, Guindy, Madras; Kumara Chandra's case, supra; Bishan Lal Gupta v State of Haryana and Others; Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v Dr. Pandurang Godwalkar and Another; M. Venugopal v Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh.
15. The position of a probationer was considered by the Supreme Court in Purshotam Lal Dhingra v Union of India. Das, C.J. speaking for the Court said that where a person is appointed to a permanent post in Government service, on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment because the Government servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operate as a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment.
16. In the case of Shamsher Singh v State of Punjab, which is a seven Judges judgment, it has been held that.--
'Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or forany temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. No punishment is involved, in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection'.
17. In the case of Dr. T.C.M. Pillai, supra, it has been held that.--
'It is well-settled that a probationer or a temporary servant can be discharged if it is found that he is not suitable for the post which he is holding. This can be done without complying with the provisions of Article 311(2) unless the services are terminated by way of punishment. Suitability does not depend merely on the excellence or proficiency in work. There are many factors which enter into consideration for confirming a person who is on probation. A particular attitude or tendency displayed by an employee can well influence the decision of the Confirming Authority while judging his suitability or fitness for confirmation'.
18. In the case of Dr. Pandurang Godwalkar, supra, it has been held that.--
'When an appointment is made on probation, it presupposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed. The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court issatisfied that there is a direct nexus between the charge so levelled and the action taken. If the decision is taken, to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee, then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the Appointing Authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee'.
19. The above principles has been followed with the approval in the case of M. Venugopal, supra. It has been held that.--
'Even under general law, the service of a probationer can be terminated after making an overall assessment of his performance during the period of probation and no notice is required to be given before termination of such service. This aspect has been examined by this Court in the case of Dr. Pandurang Godwalkar, supra, where it has been pointed out that if the performance of the employee concerned during the period of probation is not found to be satisfactory on overall assessment, then it is open to the Competent Authority to terminate his service'.
20. The other decisions cited at the Bar are not of much relevance. It is so because the judgment in the cases of J.D. Srivasthava, and Baidyanath Mahapatra, supra, relates to compulsory/premature retirement founded on stale adverse confidential reports. Similarly, in Sukdev's case, it was found that compulsory retirement was ordered on the basis of certain remarks which were not found to be bona fide by the Court. It may be noticed here that the guiding principles for ascertaining the validity of termination simplicitor of a probationer, compulsory/premature are materially different as compared to those laid down for retirement of a permanent employee.
21. So far as the case of Smt. Rajender Kaur, is concerned, it has been found by the Court that though the order of discharge was ostensibly as of simplicitor and was apparently innocuous, but in fact it was found to be based on the ground of misconduct and as such it attracted Article 311(2) of the Constitution of India, which was not complied with.
22. Similarly, in the case of Kumara Chandra, supra, it was found that the services of the Judicial Officer, who was on probation was terminated on the basis of certain complaints without due enquiry and not on the ground of suitability.
23. Equally inapplicable is the decision of the Supreme Court in the case of Bishan Lal Gupta, supra, since this judgment merely laid down the law regarding desirability of communication of adverse remarks without undue delay. The salutary proposition laid down in the judgment may have material bearing in the other aspects of service jurisprudence, but is not of much consequence where the probationer is discharged on the ground of unsuitability to the post on an overall assessment of his work and performance.
24. Keeping in view the facts of the present case as discussed above and the law declared by the Supreme Court, in my opinion, since there are materials on record to justify the discharge of the petitioner on the ground of unsuitability, this Court cannot sit in appeal over such an order. The existence of cogent materials justifying the suitability of the petitioner on assessment of his performance and, in absence of any allegations of mala fide, forebears this Court from entering into any further judicial review. Admittedly the impugned order is not by way of punishment or causes any stigma against the petitioner.
25. For the aforesaid reasons no relief as claimed can be granted to the petitioner. Accordingly, the writ petition is dismissed but without costs.